All Hail Public Inquiries! Long May They Reign?

Jack Lyons-University College Cork, Law (International)

Introduction

Following the Mahon Report, the Irish public thought they had bid farewell to the era of public inquiries. ‘We’ll not see your likes again. Thankfully.’ wrote Michael Clifford on the contentious issue of public inquiries reigning for decades in the Irish domain.[1] However, February 2018 marked the one-year anniversary since the commissioning of yet another public inquiry, the Disclosures Tribunal[2], concerning the alleged smear campaign of sergeant Morris McCabe. With public inquiries prominent once again, and daily developments from the Disclosures Tribunal encasing the realm of Irish media, it is worth re-evaluating the often negative and reductionist interpretation of the functioning of these multifaceted beings. Prominent lawyers such as David Allen Green have taken a pejorative approach to public inquiries in recent times, stating that every inquiry is ‘an implicit admission of the failure of existing state institutions’.[3] This offers a cynically biased perspective which depicts public inquiries functioning in the narrowest of terms. It omits what these inquiries provide in terms of substantive policy and administrative reform. On the other hand, it is imperative to address the ‘paradoxical’ legitimacy argument concerning the authority of an inquiry being ‘the flip-side of the lack of legitimacy of the public bodies which are already there.’[4] This relates primarily to the Executive and Legislature. The proliferation of public inquiries in the past two decades are indicative of the weaknesses of parliamentary structures.[5]

This article shall examine the operation of public inquiries in Ireland by assessing their roles in two distinct sections. This author will first briefly convey how inquiries are not merely an implicit admission of the failure of existing state institutions but are in fact a systematic progression towards institutional refinement by means of considering broad questions of policy, implementation, and political frameworks. In conjunction with this, it is further argued that the employment of public inquiries is necessary as the issues they address are often deeply political and require impartiality. Public inquiries ensure political accountability to avoid alleviation of guilt for purposes of self-preservation. Nonetheless, their prolonged reign in the Irish politico-legal landscape to date infers how our political system is alarmingly incapable of addressing these fundamental problems independently, subsequently confirming the above-mentioned legitimacy paradox. So long as impotent parliamentary structures go unreformed, the lengthy reign of public inquiries shall be perpetuated.

An Implicit Admission of Institutional Failure, or an Explicit Effort Towards Improving Administrative Oversight and Institutional Refinement?

This author provides that it is an inaccurate assumption to presume that a mechanism developed for the sole purpose of investigating facts and failings in order to provide core recommendations for avoiding future mistakes, is simply an admission of the failings of existing state institutions. In contradiction to this defeatist view that inquiries exist due to a failure within an existing state institution, it is necessary to invoke their broader function- that every inquiry is an explicit effort towards improving and regulating administrative oversight within these institutions. As Elliott succinctly provides, public inquiries present ‘the facilitation of lesson-learning by means of analysing the relevant issues and formulating proposals for reform in areas ranging from substantive policy and administrative practice to an institutional design and interaction.’[6]

The impact of tribunals recommendations on administrative oversight and institutional refinement in Irish institutions has been vast per MacCarthaigh.[7] An interim report in 2004 by the Morris Tribunal also significantly developed the appraisal of methods for overseeing police workings of An Garda Síochana in Ireland.[8] While both the Mahon and Moriarty Tribunals did not produce fundamental shifts in the administration of systems, it did produce some shifts and understandings on how procedures can be improved. It shone light on spaces not publicly highlighted before.  The dual-powers of the Moriarty and Mahon Tribunal have led to amendments to the 1995 Ethics in Public Office Act[9] in tandem with new codes of conduct for public representatives.[10] One need only review the success of the Lindsay Tribunal to be aware of how public inquiries in Ireland have been responsible for the establishment of several regulatory bodies, such as the National Haemophilia Council, which improves the administration of healthcare in Ireland.

These are but some of the examples of successful public inquiries’ recommendations forming part of a systematic effort for refining the administration and regulation of existing state institutions. Beer suggests mechanisms to be adopted in this area in order to ensure the implementation of these recommendations leading to reform.[11] This author wishes to highlight the most vital mechanism divulged; audit systems deployed to examine at a later stage to what extent the recommendations are enforced.[12] In failing to have audit systems in place, we risk inquiries regressing into implicit admission of the failure of existing state institutions without bearing any actual reforms.

Lack of Trust, and Legitimacy in Public Bodies- Two Unfortunately Harmonious Elements

It seems that if something is a matter of ‘public interest’,[13] then it should be dealt with by the political system. There is a degree of cynicism in the modern political era regarding the ability of political actors to deal with these issues in a non-partisan and efficient manner. Oireachtas committees seem a worthy contender for carrying out this task. Yet, Donson and O’Donovan note how fear of proximity to the State underlying the Oireachtas mechanism disrupts this.[14] When members of the Executive and their counterparts act as the perpetrators, there is perhaps little chance of bringing themselves to account or at least little public faith in this being done. As the saying goes, turkeys do not vote for Christmas. This presumption of political self-preservation thus requires impartiality in the form of a judicial figure leading a public inquiry to ensure effective accountability.[15]

However, it is not solely this lack of trust in our political actors that provokes the public not wishing to have those who should deal with the identified problem to do so. A correlation exists between this lack of trust, and the inherent weaknesses of the public bodies in place i.e. the parliamentary systems. They are unfortunately harmonious. Flaws in the legitimacy of public inquiries become apparent when examining issues assessing workings within the political realm, such as the Mahon Tribunal compared to the Stardust Tribunal. Although the effect of public inquiries is to develop policy reforms regarding institutional failure and administrative oversight of public bodies, their independence and expertise does raise the question of why the Executive and the Legislature cannot achieve this.

It is submitted that the rapid proliferation of public inquiries is representative of the fundamental flaws within the current parliamentary system in Ireland in dealing with issues addressed by public inquiries.[16] The Beef Inquiry links the paradoxical legitimacy argument exhumed at the exposition of this article as it provides cause for tribunals of inquiry due to weak parliamentary oversight mechanisms. Hamilton CJ claimed at the Beef Tribunal that ‘[I] think if the questions that were asked in the Dáil were answered in the way they are answered here, there would be no necessity for this inquiry and an awful lot of money and time would be saved.’[17] This explicitly exemplifies the flip-side of the legitimacy of public bodies and inquiries. Parliamentary debate subsequent to the Finlay Tribunal’s offers reaffirms this inconsistency:

Why was this information revealed in a tribunal as distinct from Dáil Eireann? The answer is that the Dáil failed because it was misled by Ministers who, in turn, were misled by State authorities. The Dáil failed in one of its primary functions, to hold the Government of the day accountable for its stewardship of State authorities, and this is very dangerous.[18]

Although there will always be the risk ‘that proceedings will be undermined by party-political scoring’[19] due to the very nature of the parliamentary process, it seems that we may have abandoned the executive and legislative organs of state to deal with these issues, particularly political accountability. The Executive has the resources to monitor its officials and to make effective policies, and there are in place independent inspectors and complaints commissioners. This can ‘negate impact on accountability’[20] as the Legislature can hold the Executive to account, and through its committees it can obtain evidence and have public hearings.[21] Yet, its effectiveness in practice has proven weak. This legitimises the relevant independence and expertise of public inquiries. MacCarthaigh notes how ‘[t]he recurring theme of recent tribunals of inquiry has been that parliamentary procedures such as Question Time and adjournment debates have failed in their role of assessing the Executive.’[22] Concerning political actors, the very need to set up the Beef Tribunal or the Moriarty Tribunal demonstrates how parliamentary mechanisms are ‘virtually impotent’ in terms of eliciting information from members of the government.[23] The fact that public inquiries are ‘typically only used … when other agencies of investigation have failed to work or are unlikely to work.’[24], delivers a bleak image of parliamentary mechanisms in light of inquiries widespread use. This article calls for urgent parliamentary reforms in order to allow established public bodies in the political system to regain credibility, and deal with these issues in the absence of public inquiries.

Concluding Remarks

Following the commissioning of the Disclosures Tribunal, it appears that public inquiries are here to reign supreme for the time being. This may have positive implications when one considers the arguments this article has expanded in terms of public inquiries working as a systematic progression towards institutional refinement by means of considering broad questions of policy and administrative oversight, implementation and political frameworks. However, as public inquiries are ‘often a procedure of last resort, to be used when nothing else will serve to allay public disquiet, usually based on sensational allegations, rumours or disasters’[25], their continuous endorsement heightens the paradoxical issue discussed throughout this article, surrounding the legitimacy of a public inquiry. They infer how our political system is gravely incapable of addressing these fundamental problems independently. Once the reign of the Disclosures Tribunal ends, it is vital that we seek structural reforms within the politico-legal sphere to overthrow this heavy reliance on public inquiries, and to bolster a clearly illegitimate political system lacking in integrity.

 

[1] M Clifford ‘Farewell to Tribunals’ Irish Examiner (Dublin 1 January 2013) 6.

[2] Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters. Established by the Minister for Justice and Equality under the Tribunals of Inquiry (Evidence) Act 1921, (17 February 2017).

[3] David Allen Green ‘Are Inquiries a Bad Thing?’ (Financial Times, 4 November 2014) https://www.ft.com/david-allen-green/2014/11/04/are-inquiries-a-bad-thing/?

[4] ibid.

[5] G Mitchell, By Dáil Account: Auditing of Government, Past, Present and Future, (Dublin: Institute of Public Administration 2010)

[6] M Elliott, Ombudsmen, Tribunals, Inquiries: Re-Fashioning Accountability Beyond the Courts (August 22, 2012). University of Cambridge Faculty of Law Research Paper No. 21/2012. Available at SSRN: https://ssrn.com/abstract=2133879 or http://dx.doi.org/10.2139/ssrn.2133879.

[7] M MacCarthaigh, Accountability in Irish Parliamentary Politics, (Dublin: Institute of Public Administration 2005).

[8] A Morris, Tribunal of Inquiry into complaints concerning some Gardaí of the Donegal Division (The Stationary Office, Dublin 2008).

[9] 1995 Ethics in Public Office Act.

[10] Supra note 4 225.

[11] J. Beer QC, Public Inquiries (Oxford University Press, Oxford 2011)

[12] ibid.

[13] Tribunals of Inquiry (Evidence) Act 1921 s.2 (a).

[14] F Donson and D O’Donovan, Law of Public Administration in Ireland, (Clarus Press Dublin 2014) [5-04].

[15] I Steele, ‘Judging Judicial Inquiries’ (2004) PL 738-749 740.

[16] Supra note 4.

[17] F O’Toole, Meanwhile Back at the Ranch (Vintage, London 1995) 241.

[18] Dáil Debates, 20 March 1997, Vol. 476, Col. 1261.

[19] S Sedley QC, ‘Public Inquiries: A Cure or a Disease?’ (1989) 52 MLR 469 475.

[20] Supra note 7 [5-14].

[21] Supra note 1.

[22] Supra note 4 216.

[23] ibid.

[24]A Mahon, Tribunal of Inquiry into Certain Planning Matters and Payments (The Stationary Office, Dublin 2012) 22.

[25] H WR Wade and CF Forsyth, Administrative Law (10th ed Oxford University Press, Oxford 2009) 824.

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